Wishart et al v. Ethicon, Inc. et al, No. 2:2013cv13930 - Document 17 (S.D.W. Va. 2020)
Court Description: MEMORANDUM OPINION AND ORDER directing that plaintiffs Joyce Wishart and Michael Wishart are DISMISSED without prejudice; this case is dismissed and stricken from the docket; any remaining pending motions are DENIED as moot. Signed by Judge Joseph R. Goodwin on 11/10/2020. (cc: counsel; any unrepresented party) (kew)
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Wishart et al v. Ethicon, Inc. et al Doc. 17 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION JOYCE WISHART, ET AL., Plaintiffs, v. Civil Action No. 2:13-cv-13930 ETHICON, INC., ET AL., Defendants. MEMORANDUM OPINION AND ORDER Plaintiffs’ counsel filed this civil action on June 10, 2013, on behalf of Joyce Wishart and her spouse, Michael Wishart. [ECF No. 1]. On August 22, 2019, plaintiffs’ counsel filed a Suggestion of Death noting the death of Joyce Wishart on April 4, 2013. [ECF No. 14]. Because the plaintiff Joyce Wishart was deceased prior to the time this case was filed, she cannot bring a lawsuit in her own name. “[A] lawsuit filed in the name of a deceased individual is a nullity over which this Court has no jurisdiction.” In re Engle Cases, No. 3:09-cv-1000-J-32JBT, 2013 WL 8115442, at *2 (M.D. Fla. Jan. 22, 2013). Accordingly, the court ORDERS that the plaintiff Joyce Wishart is DISMISSED without prejudice. Plaintiff Michael Wishart remains. Turning to the remaining plaintiff, Michael Wishart, in response to Pretrial Order # 293, plaintiffs’ counsel filed an election form in which “any applicable derivative plaintiffs” agreed to dismiss the case without prejudice subject to the waiver provisions of PTO # 293. [ECF No. 12]. Plaintiff Joyce Wishart’s husband, Michael Wishart, is a derivative plaintiff who, unlike Joyce Wishart, was alive at the time the election form was filed. Accordingly, the court ORDERS that plaintiff Michael Wishart is DISMISSED without prejudice, and this case is dismissed and stricken from the docket. Any remaining pending motions are DENIED as moot. Dockets.Justia.com The court DIRECTS the Clerk to file a copy of this Order and to send a copy of this Order to counsel and any unrepresented party. ENTER: November 10, 2020 2
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